Volume 235 — Connecticut Appellate Reports

The defendants appealed from the trial court's judgment for the plaintiff on his claims of fraud and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) in connection with a loan agreement between the parties. The defendants claimed, inter alia, that the court erred in finding that the three year statutes of limitations governing the plaintiff's claims had been tolled by their fraudulent concealment pursuant to statute (§ 52-595). Held: The trial court correctly determined that § 52-595 tolled the statutes of limitations governing the plaintiff's fraud and CUTPA claims, as sufficient evidence supported the court's finding that the defendants intentionally concealed from the plaintiff the facts necessary to establish his claims and, due to the defendants' conduct in repeatedly and falsely representing to the plaintiff that he would be repaid, the plaintiff did not become aware of his causes of action until almost two years after the defendant H had knowingly misappropriated the loaned funds. The trial court's punitive damages award pursuant to statute (§ 42-110g (a)) on the CUTPA claim did not constitute an abuse of its discretion, as the court reasonably could have concluded that the defendants' conduct in knowingly misappropriating the loaned funds and repeatedly engaging in deceptive acts to conceal the fraud and delay the plaintiff from pursing legal action warranted the amount of the award. Argued May 19—officially released September 9, 2025

The petitioner, who had previously been convicted of sexual assault and risk of injury to a child, appealed after the habeas court denied his petition for certification to appeal from its judgment denying his petition for a writ of habeas corpus. He claimed, inter alia, that the court improperly construed the allegations in his petition for a writ of habeas corpus, resulting in a deprivation of his right to due process. Held: The habeas court did not abuse its discretion in denying the petitioner certification to appeal, as he failed to demonstrate that his underlying claim of error was debatable among jurists of reason, that a court could resolve the issues in a different manner or that the question was adequate to deserve encouragement to proceed further, and, accordingly, this court concluded that the petitioner failed to invoke this court's jurisdiction, and the appeal was dismissed. The habeas court properly denied the petition for a writ of habeas corpus, as, despite the petitioner's claim to the contrary, the court properly construed the allegations of the petition to the petitioner's benefit, in light of the petitioner's legal burden and the specific relief sought by him, and, even if the petitioner could demonstrate that the court erred in its interpretation of the allegations in the petition, the petitioner failed to demonstrate that it resulted in a specific due process violation as was alleged. Argued March 17—officially released September 16, 2025

The defendant property owners appealed from the trial court's judgment granting the plaintiff bank's application for execution of ejectment and from the court's denial of their motion for judgment on the plaintiff's claim for money damages under the mortgage note. This court, in a prior appeal, affirmed the trial court's judgment of strict foreclosure, and, thereafter, the trial court granted the plaintiff's motion for order to set new law days. Prior to the running of the law days, the court denied the defendants' motion to open the judgment and extend the law days. On appeal, the defendants claimed, inter alia, that the court improperly granted the plaintiff's applica- tion for execution of ejectment on the ground that their objection thereto was moot. Held: This court rejected the plaintiff's challenge to this court's subject matter jurisdiction over the appeal, as the law day set by the trial court was rendered ineffective by the automatic appellate stay that arose after the denial of the plaintiff's motion to open and, therefore, title to the property had not passed irrevocably to the plaintiff and the appeal was not moot. The trial court abused its discretion in relying on the scheduled law day to conclude that the defendants' objection to the application for execution of ejectment was moot, as the court's denial of the defendants' motion to open gave rise to an automatic appellate stay, which rendered the scheduled law day ineffective, and therefore title had not yet vested in the plaintiff. This court declined to review the merits of the defendants' claim that the trial court improperly denied their motion for judgment on the plaintiff's claim for money damages under the mortgage note, the defendants having failed to provide this court with an adequate record for review. Argued June 2—officially released September 16, 2025

Convicted, following a bench trial, of the crime of robbery in the second degree, the defendant appealed. He claimed, inter alia, that the trial court improperly failed to conduct an independent inquiry into his competence to understand the proceedings and to assist his counsel in his defense. Held: The trial court did not abuse its discretion in declining to conduct a compe- tency hearing, as the court's observations of the defendant did not lead it to believe that his conduct rose to the level of substantial evidence of mental impairment and, thus, the defendant's unpreserved claim that the trial court's failure to conduct a competency hearing violated his due process right to a fair trial failed under the third prong of State v. Golding (213 Conn. 233). The evidence was sufficient to support the defendant's conviction, as the trial court found, beyond a reasonable doubt, that the defendant intended to steal the victim's car and represented to the victim that he had a deadly weapon or a dangerous instrument, which he put to the back of the victim's head and threatened to use if the victim did not comply with his order to get on the ground. The trial court did not, as the defendant claimed, clearly and conclusively deny him his constitutional right to represent himself during a pretrial hearing, the court having instead continued the hearing to resolve its concern about his competence, and the defendant thereafter waived his right to self- representation when, after his counsel withdrew, he acquiesced to being represented by a different attorney and did not reassert his request to represent himself, and the defendant's contention that the court's alleged error was structural, thereby requiring the reversal of his conviction, did not contradict this court's conclusion that he waived his right to repre- sent himself. The trial court did not abuse its discretion when it properly determined that defense counsel opened the door to the admission of hearsay testimony from a police officer regarding an out-of-court statement by the victim describing the robbery suspects, as defense counsel's implication on cross- examination of the officer that the police did not have an adequate descrip- tion of the robber could have left the court, as the fact finder, with the false impression that the police did not have a more specific description of the robber, and the officer's testimony served to remove any unfair prejudice that might have otherwise ensued from defense counsel's inquiry. Argued March 13—officially released September 16, 2025

The plaintiff, a former Waterbury police officer who suffered a work-related injury, appealed from the trial court's judgment dismissing in part and deny- ing in part his administrative appeal from the decision of the defendant Retirement Board of the City of Waterbury, which had denied his application for a disability pension, and from the court's judgment dismissing his breach of contract claim with respect to the board and denying that claim with respect to the defendant city. The plaintiff claimed, inter alia, that the court committed plain error by failing to consider and analyze an allegedly applicable statute (§ 31-71f) regarding certain information an employer must provide to employees, which the parties did not raise in their arguments before the court. Held: This court declined to reach the merits of the plaintiff's claim regarding the trial court's failure to consider § 31-71f, as the plaintiff failed to adequately brief it. The trial court did not improperly deny the plaintiff's administrative appeal from the board's denial of his application for disability retirement and pen- sion benefits, the court having properly determined that the plaintiff did not have a ''work-related disability'' as defined under the city's ordinances (§§ 35.035 and 35.073), as there was substantial evidence that the city intended to and did offer the plaintiff a qualifying job pursuant to § 35.035 that he could perform. The board properly did not award any retroactive payments under § 35.073 of the city's ordinances, as it determined that the plaintiff was not eligible for disability benefits. The plaintiff's claim that § 35.035 of the city's ordinances required the city to offer him a job with a base pay rate of at least 75 percent of his total compensation as a police officer, not his base pay rate, was unsupported by the language of the ordinance. The trial court properly dismissed the administrative appeal with respect to the city, as the plaintiff provided no legal authority to support bringing an administrative appeal against the city, which was not involved in rendering the administrative decision. The plaintiff could not prevail on his claim that the trial court improperly denied his breach of contract claim with respect to the city, as the plaintiff failed to demonstrate that the city violated any ordinance with respect to disability pension benefits and, therefore, failed to establish a breach of the collective bargaining agreement between the city and the plaintiff's former union. The trial court properly dismissed the plaintiff's breach of contract claim with respect to the board, as the board was not a proper party to the claim because it was not a party to the collective bargaining agreement. Argued April 21—officially released September 16, 2025

The plaintiff appealed from the trial court's judgments denying his applica- tion to vacate an arbitration award and granting the defendants' application to confirm that same award, which had been issued in connection with an employment dispute. The award was issued in favor of the defendant W Co., the plaintiff's former employer, and the defendant B, a member of W Co.'s board of managers. The plaintiff claimed, inter alia, that the court improperly failed to vacate the award because the arbitrator exceeded the scope of the arbitration submission and acted in manifest disregard of the law in awarding attorney's fees and costs to the defendants. Held: The plaintiff's failure to include the trial court docket number of the defen- dants' application to confirm the arbitration award on his appeal form did not render his appeal moot, as the defendants provided no authority indicat- ing that a party's failure to list all of the trial court docket numbers on an appeal form in accordance with the rule of practice (§ 61-7 (a) (1)) deprived the trial court of subject matter jurisdiction, and the appeal form filed by the plaintiff provided notice to the defendants that the plaintiff was challeng- ing the propriety of both the judgment denying his application to vacate the award and the judgment granting the defendants' application to confirm the award. The plaintiff could not prevail on his claim that the trial court improperly failed to vacate the arbitration award because the arbitrator both exceeded the scope of the arbitration submission and acted in manifest disregard of the law in awarding attorney's fees and costs to the defendants, as the plain language of the arbitration clause in the plaintiff's employment agreement provided that the prevailing party was entitled to receive an award of attor- ney's fees and costs in addition to all other damages to which such party was entitled, the alleged ambiguity in the arbitration clause regarding the arbitrator's ability to award attorney's fees undermined any claim that the award fell outside of the scope of the submission, the court expressly found that the defendants were the prevailing party in the arbitration, and the plaintiff failed to demonstrate a manifest disregard of the law by the arbitra- tor with respect to the award of attorney's fees and costs. The arbitrator did not manifestly disregard the law by denying the plaintiff's counterclaim alleging breach of the duty of good faith and fair dealing, as the arbitrator set forth the proper legal principles governing the duty of good faith and fair dealing and made detailed findings with respect to the conduct of both the plaintiff and W Co. based on his review and credibility assessment of the documentary and testimonial evidence presented at the arbitration proceeding. The plaintiff failed to establish that the trial court improperly denied his application to vacate the arbitration award or improperly granted the defen- dant's application to confirm the award because the arbitrator acted in manifest disregard of the law by misapplying the after-acquired evidence doctrine with respect to evidence that W Co. knew the plaintiff had provided consulting services to a third party in violation of his employment agreement prior to the termination of his employment, as the plaintiff failed to overcome the high burden of showing that the governing law on waiver was well- defined, explicit and clearly applicable in situations in which both the after- acquired evidence doctrine and a reservation of rights clause were impli- cated, that an obvious error existed that was capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator, or that the arbitrator appreciated, yet ignored, a clearly governing legal prin- ciple. Argued February 11—officially released September 23, 2025

The plaintiff appealed from the trial court's judgment dismissing his adminis- trative appeal from the decision of the defendant Commissioner of Motor Vehicles. In his decision, the commissioner suspended the plaintiff's motor vehicle operator's license following his arrest for operating a motor vehicle while under the influence of intoxicating liquor and required, pursuant to statute (§ 14-227b (i)), as a condition for the restoration of his license, that the plaintiff install an ignition interlock device in a motor vehicle he owned or operated. The plaintiff claimed that the court improperly dismissed his administrative appeal for lack of standing because he had established that he was an indigent driver who did not own a motor vehicle, could not afford a motor vehicle, and had no access to a motor vehicle in which to install an ignition interlock device, and, therefore, there was a possibility that his legally protected interest in a motor vehicle operator's license would be adversely and unequally affected by the ignition interlock device requirement in violation of the equal protection clauses of the United States and Connecti- cut constitutions. Held: The trial court properly determined that the plaintiff did not have standing to assert his constitutional claim, as the plaintiff failed to establish that he was a member of the group of individuals that he asserted § 14-227b (i) was enacted to discriminate against, namely, indigent drivers who do not own a motor vehicle, who cannot afford a motor vehicle, and who do not have access to a motor vehicle in which to install an ignition interlock device, as is required by § 14-227b (i). (One judge dissenting) Argued March 26—officially released September 23, 2025

The petitioner, who had previously been convicted of, inter alia, violation of a protective order, appealed, on the granting of certification, from the habeas court's judgment dismissing his petition for a writ of habeas corpus. He claimed that the court erred by dismissing his petition for lack of subject matter jurisdiction on the ground that he was not in custody while on conditional discharge pursuant to the statute (§ 52-466) governing applica- tions for writs of habeas corpus. Held: The habeas court improperly determined that it lacked jurisdiction over the petition for a writ of habeas corpus, as the petitioner was in custody while on conditional discharge within the meaning of § 52-466, regardless of the conditions of discharge, because such an individual is subject to incarcera- tion without the procedural safeguards enjoyed by members of the public, and that exposure, in itself, constitutes a severe restraint on an individu- al's liberty. Argued March 18—officially released September 30, 2025

The respondent, the Commissioner of Correction, appealed, on the granting of certification, from the habeas court's judgment granting in part the peti- tioner's petition for a writ of habeas corpus. The respondent claimed that the court improperly determined that the petitioner's criminal trial counsel had rendered ineffective assistance in advising the petitioner not to testify in support of his claim of self-defense in light of the potential admissibility into evidence of certain of the petitioner's prior convictions. Held: The habeas court improperly granted in part the habeas petition, as the petitioner failed to demonstrate that his counsel rendered deficient perfor- mance in advising him not to testify, that advice having been within the range of reasonable professional assistance based on counsel's concern that the petitioner's testimony might potentially open the door to the admission of his prior convictions or that the trial court could permit their use as impeachment evidence. The habeas court improperly determined that the petitioner was prejudiced as a result of his counsel's advice, as the petitioner failed to show, in light of the strength of the state's case, that a reasonable probability existed that the trial's outcome would have been different had his counsel advised him that the admissibility of the prior convictions would have been limited had the petitioner testified, and the petitioner's testimony would have been, to some extent, cumulative of the record already established at the trial. Argued April 22—officially released September 30, 2025

Convicted of various crimes in connection with a motor vehicle accident involving a pedestrian, the defendant appealed to this court. The defendant claimed, inter alia, that his conviction of assault in the second degree with a motor vehicle and assault in the second degree, arising from a single occurrence, violated the double jeopardy clause of the fifth amendment to the United States constitution and the Connecticut constitution. Held: The defendant could not prevail on his claim that there was insufficient evidence to convict him of assault in the second degree with a motor vehicle and assault in the second degree, as the state adduced ample evidence for the jury to reasonably conclude that the state had proven beyond a reason- able doubt that the defendant was the operator of the vehicle that struck the victim, that the defendant's intoxication caused the victim's injuries, and that the victim suffered serious physical injuries. The defendant's conviction of assault in the second degree with a motor vehicle and assault in the second degree did not violate double jeopardy because the defendant failed to establish a clear legislative intent to treat the relevant statutes (§§ 53a-60 (a) (3) and 53a-60d) as one offense for double jeopardy purposes pursuant to Blockburger v. United States (284 U.S. 299), as the statute and the information on each charge at issue required proof of elements that the statute and the information on the other charge did not, neither statute refers to the other, each statute sets a different penalty, and the statutes have distinct purposes, and the fact that the same evidence was used to establish that the defendant committed each crime was irrele- vant. The trial court's supplemental instruction to the jury in response to a note it received regarding whether ''serious physical injury'' to the victim must be long-term did not mislead the jurors, as the court answered the jury's question and that answer was correct in law, the court did not state that permanence was not a factor that the jury could consider in determining whether the victim sustained a serious physical injury, and the court referred the jury to its original instructions, a copy of which was in the jury's posses- sion, and those instructions provided the correct definition of ''serious physi- cal injury.'' Argued April 15—officially released October 7, 2025

The plaintiff appealed from the trial court's judgment limiting his recovery of costs pursuant to statute (§ 31-72) to statutory, taxable costs. The plaintiff claimed that the court improperly concluded that costs recoverable under § 31-72 are limited to statutory, taxable costs rather than all reasonable and necessary costs. Held: Pursuant to the binding precedent of this court in Miller v. Guimaraes (78 Conn. App. 760) and Arnone v. Enfield (79 Conn. App. 501), this court concluded that costs recoverable under § 31-72 are limited to statutory, taxable costs. Argued January 9—officially released October 7, 2025

The petitioner, who previously had been convicted of assault in the first degree, appealed, on the granting of certification, from the habeas court's judgment denying his petition for a writ of habeas corpus. The petitioner, whose trial counsel had been permitted by the trial court to withdraw upon an oral motion made during a hearing at which the petitioner failed to appear, claimed, inter alia, that the habeas court erred in determining that the proceeding during which his counsel had withdrawn was not a critical stage of the prosecution and, thus, despite his absence, his rights to due process had not been violated. Held: The habeas court properly determined that the proceeding during which the trial court granted the motion to withdraw by the petitioner's criminal trial counsel was not a critical stage of the petitioner's prosecution, as, although the proceeding had originally been scheduled to address a pending plea offer from the state, the petitioner's failure to appear at the hearing changed the nature of the hearing, and the proceeding had no effect on the petitioner's ability to later accept or reject a plea offer from the state. Argued March 19—officially released October 7, 2025

Convicted, following a jury trial, of attempt to commit murder and other crimes, the defendant appealed. He claimed, inter alia, that the trial court violated his right to jury unanimity by discharging the jury after accepting its verdict but before disclosing to the parties that one of the jurors had made an ex parte comment to the court in the deliberation room that she felt ''a little guilty about the attempted murder charge.'' Held: The defendant's unpreserved claim that the trial court violated his right to jury unanimity failed under the third prong of State v. Golding (213 Conn. 233), as the juror's comment was simply a statement about how she felt about the verdict that could not reasonably be construed as an equivocation or expression of reservation about it and did not indicate that she or any other juror had not agreed to the verdict, and, because this court could not infer that the juror intended her comment to inform the trial court that the jury's verdict was not unanimous, that court's failure to disclose the comment to the parties before discharging the jury did not amount to a constitu- tional violation. The trial court did not abuse its discretion by conducting a limited inquiry during a posttrial hearing about the juror's comment and denying the defen- dant's request to inquire into why she made that comment, as the court's actions did not deprive the defendant of his right to a fair trial but, rather, satisfied the preliminary inquiry into possible juror misconduct required under State v. Brown (235 Conn. 502), the juror having affirmed her verdict and the court, on the basis of the juror's testimony, having determined that there was no indication that the jury's verdict lacked unanimity or that juror misconduct had occurred, and further questioning of the juror would have constituted improper inquiry into the mental processes by which the verdict was determined. (One judge concurring and one judge dissenting in separate opinions) Argued February 10—officially released October 7, 2025 In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as amended by the Violence Against Women Act Reauthorization Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person protected or sought to be protected under a protection order, protective order, or a restraining order that was issued or applied for, or others through whom that person's identity may be ascertained.

The plaintiff appealed from the trial court's judgment for the defendant on his complaint alleging, inter alia, a prescriptive easement over the defendant's property pursuant to statute (§ 47-37). The plaintiff claimed, inter alia, that the court improperly determined that his use of the defendant's property was not open and visible and continuous and uninterrupted for fifteen years. Held: The trial court's finding that the plaintiff's use of the defendant's property was not open and visible was not clearly erroneous, as the plaintiff presented no evidence that he maintained the area where he crossed the defendant's property and he left no physical conditions to put the prior owner or the defendant on notice of his use, and the prior owner of the defendant's property had no knowledge of the plaintiff's use of the alleged easement until the plaintiff informed him of the use upon the sale of the property to the defendant. The trial court's finding that the plaintiff's use of the defendant's property was not continuous and uninterrupted for fifteen years was not clearly erroneous, as the court discredited the plaintiff's testimony that he biannu- ally crossed the defendant's property to reach the rear of his property for yardwork, and there was ample support in the record for the court's finding that the plaintiff used the defendant's property only sporadically and inter- mittently. The trial court properly determined that the plaintiff failed to establish the boundaries of the alleged prescriptive easement with reasonable certainty, as the plaintiff presented only his own testimony and several exhibits, which the court found to be inadequate. Argued September 4—officially released October 14, 2025

The defendant, who previously had been convicted of the crimes of murder, felony murder and capital felony, appealed from the trial court's dismissal of his motion for sentence modification. The defendant claimed that the court erred in determining that his sentence of life imprisonment without the possibility of release was a mandatory minimum sentence that the court was precluded from modifying pursuant to statute (§ 53a-39 (d)). Held: The trial court correctly determined that § 53a-39 (d) precluded the modifica- tion of the defendant's sentence, as a definite sentence of life imprisonment without the possibility of release required to be imposed pursuant to the capital felony statute (§ 53a-35a (1) (A)) operated as a mandatory minimum sentence, despite the absence of the phrases ''mandatory minimum'' or ''may not be suspended or reduced,'' and § 53a-39 (a) did not offer any express terms or criteria that would have allowed the court to modify that sentence. The trial court improperly dismissed the defendant's motion for sentence modification on the ground that it lacked subject matter jurisdiction, as the limitation set forth in § 53a-39 (d) operated to limit the court's authority to modify the defendant's sentence but did not affect the court's subject matter jurisdiction, and, accordingly, the court should have denied the motion. Argued September 3—officially released October 14, 2025